AB464: Bill Text

LRB-1962/1

CMH:eev:rs

2013 - 2014 LEGISLATURE

2013 Assembly BILL 464

October 25, 2013 - Introduced by Representatives Bies, Berceau, Bernard Schaber, Bernier, Bewley, Billings, Brooks, Hebl, Hintz, Jacque, Johnson, Murphy, A. Ott and Richards, cosponsored by Senators L. Taylor, Carpenter, Hansen, Harris, Lehman, Risser and Shilling. Referred to Committee on Public Safety and Homeland Security.

AB464,1,10 An Act to repeal 813.122 (5m) (am), 813.122 (5m) (aw), 813.122 (5m) (b) and (c), 813.125 (4m) (cm), 813.125 (4m) (cw) and 813.125 (4m) (d) and (e); to renumber 813.122 (2); to renumber and amend 813.12 (4m) (am), 813.12 (4m) (aw), 813.12 (4m) (b) and 813.12 (4m) (c); to amend 48.25 (6), 813.12 (4m) (a) 1., 813.12 (4m) (a) 2., 813.122 (5m) (a) 1., 813.122 (5m) (a) 2., 813.125 (4) (a) 2., 813.125 (4m) (c) 1., 813.125 (4m) (c) 2., 813.125 (6) (c) and 938.25 (6); and to create 785.01 (1) (bp) and (br), 813.12 (2) (c), 813.122 (2) (b), 813.125 (4) (a) 2. a., b. and c. and 813.1285 of the statutes; relating to: providing notice of firearm prohibition when serving notice for certain injunction hearings and process for surrendering firearms following the granting of certain injunctions.

Analysis by the Legislative Reference Bureau

Under current law, a person is prohibited from possessing a firearm and must surrender any firearm he or she possesses if he or she is subject to a domestic abuse injunction, a child abuse injunction, or, if the court determines that he or she may use a firearm to harm another or endanger public safety, a harassment injunction (injunction). A person who is subject to an injunction (respondent) must surrender his or her firearm to a sheriff or to a third party approved by the court and is guilty of a Class G felony if convicted of possessing a firearm while subject to the injunction. This bill creates a procedure for notifying a person, when the person is served with a petition for an injunction hearing, of the prohibition against possessing a firearm and of the requirement to surrender any firearm.

The bill also creates a procedure for surrendering firearms after the court grants an injunction. If the respondent is present at the injunction hearing, he or she must provide the court with a completed firearm possession form, which requests information such as whether the respondent possesses, or has possessed in the previous six months, any firearm and, if so, the quantity and the make and model of the firearm. If the respondent is not present at the injunction hearing, the court must provide the petitioner the opportunity to inform the court, orally or in writing, whether he or she believes that the respondent possesses a firearm. If the court is satisfied that the respondent does not possess a firearm, the court must file the firearm possession form. If the firearm possession form or the petitioner indicates that the respondent possesses a firearm, or if the court is not satisfied that the respondent does not possess a firearm, the court must schedule a hearing to surrender firearms to occur with one week of the injunction hearing. The court must dismiss the hearing if the respondent surrenders his or her firearms to a sheriff within 48 hours or, if the respondent appeared at the injunction hearing and the court approves of the surrender, to another person who also appeared at the injunction hearing, who testifies under oath that the person received all of the firearms on the firearm possession form, who is not prohibited by law from possessing a firearm, and who is informed of the penalties for furnishing a firearm to a person who is prohibited by law from possessing a firearm (qualified person).

If the court does not dismiss the hearing to surrender firearms, the respondent must attend the hearing. A respondent who fails is in contempt of court and the court must issue an arrest warrant. At the hearing to surrender firearms the court must verify all of the information on the firearm possession form and either permit the surrender to a qualified person or order the respondent to surrender his or her firearms to the sheriff within 48 hours. A respondent who fails to comply with an order to surrender his or her firearms to a sheriff is in contempt of court and the court must issue an arrest warrant.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB464,1 Section 1. 48.25 (6) of the statutes is amended to read:

AB464,3,7 48.25 (6) If a proceeding is brought under s. 48.13, any party to or any governmental or social agency involved in the proceeding may petition the court to issue a temporary restraining order and injunction as provided in s. 813.122 or 813.125. The court exercising jurisdiction under this chapter shall follow the procedure under s. 813.122 or 813.125 except that the court may combine hearings authorized under s. 813.122 or 813.125 and this chapter, the petitioner for the temporary restraining order and injunction is not subject to the limitations under s. 813.122 (2) (a) or 813.125 (2) and no fee is required regarding the filing of the petition under s. 813.122 or 813.125.

AB464,2 Section 2. 785.01 (1) (bp) and (br) of the statutes are created to read:

AB464,3,10 785.01 (1) (bp) Failure to attend a hearing to surrender firearms as required under s. 813.1285 (4) (a);

AB464,3,11 (br) Violation of an order under s. 813.1285 (4) (b) 2.;

AB464,3 Section 3. 813.12 (2) (c) of the statutes is created to read:

AB464,3,15 813.12 (2) (c) When the respondent is served with the petition under this subsection, the person who serves the respondent shall also provide the respondent all of the following information:

AB464,3,17 1. Notice of the requirements and penalties under s. 941.29 (1) (f) and (2) (e) and notice of any similar applicable federal laws and penalties.

AB464,3,20 2. An explanation of s. 813.1285, including the procedures for surrendering a firearm and the circumstances listed under s. 813.1285 under which a respondent must appear at a hearing to surrender firearms.

AB464,3,22 3. A firearm possession form developed under s. 813.1285 (5) (a), with instructions for completing and returning the form.

AB464,4 Section 4. 813.12 (4m) (a) 1. of the statutes is amended to read:

AB464,4,3 813.12 (4m) (a) 1. Inform the respondent named in the petition of the requirements and penalties under s. 941.29 and any similar applicable federal laws and penalties.

AB464,5 Section 5. 813.12 (4m) (a) 2. of the statutes is amended to read:

AB464,4,16 813.12 (4m) (a) 2. Except as provided in par. (ag), require in writing the respondent to surrender any firearms that he or she owns or has in his or her possession to the sheriff of the county in which the action under this section was commenced, to the sheriff of the county in which the respondent resides or to another person designated by the respondent and approved by the judge or circuit court commissioner. The judge or circuit court commissioner shall approve the person designated by the respondent unless the judge or circuit court commissioner finds that the person is inappropriate and places the reasons for the finding on the record. If a firearm is surrendered to a person designated by the respondent and approved by the judge or circuit court commissioner, the judge or circuit court commissioner shall inform the person to whom the firearm is surrendered of the requirements and penalties under s. 941.29 (4) in accordance with s. 813.1285.

AB464,6 Section 6. 813.12 (4m) (am) of the statutes is renumbered 813.1285 (6) and amended to read:

AB464,4,24 813.1285 (6) (a) When a respondent surrenders a firearm under par. (a) 2. sub. (3) (b) or (4) (b) 2. to a sheriff, the sheriff who is receiving the firearm shall prepare a receipt for each firearm surrendered to him or her. The receipt shall include the date on which the firearm was surrendered and the manufacturer, model, and serial number of the firearm surrendered to the sheriff and shall be signed by the respondent and by the sheriff to whom the firearm is surrendered.

AB464,5,6 (b) The sheriff shall keep the original of a receipt prepared under subd. 1. par. (a) and shall provide an exact copy 2 copies of the receipt to the respondent. The respondent shall provide one copy of the receipt to the clerk of courts within 48 hours of the order to surrender firearms. When the firearm covered by the receipt is returned to the respondent under par. (b) sub. (7), the sheriff shall surrender to the respondent the original receipt and all of his or her copies of the receipt.

AB464,5,9 (c) A receipt prepared under subd. 1. par. (a) is conclusive proof that the respondent owns the firearm for purposes of returning the firearm covered by the receipt to the respondent under par. (b) sub. (7).

AB464,5,13 (d) The sheriff may not enter any information contained on a receipt prepared under subd. 1. par. (a) into any computerized or direct electronic data transfer system in order to store the information or, except as provided in par. (b), disseminate or provide access to the information.

AB464,7 Section 7. 813.12 (4m) (aw) of the statutes is renumbered 813.1285 (6) (e) 1. and amended to read:

AB464,5,20 813.1285 (6) (e) 1. A sheriff may store a firearm surrendered to him or her under par. (a) 2. sub. (3) (b) or (4) (b) 2. in a warehouse that is operated by a public warehouse keeper licensed under ch. 99. If a sheriff stores a firearm at a warehouse under this paragraph subdivision, the respondent shall pay the costs charged by the warehouse for storing that firearm.

AB464,8 Section 8. 813.12 (4m) (b) of the statutes is renumbered 813.1285 (7) (a), and 813.1285 (7) (a) (intro.) and 1., as renumbered, are amended to read:

AB464,6,2 813.1285 (7) (a) (intro.) A firearm surrendered under par. (a) 2. this section may not be returned to the respondent until the respondent completes a petition for the return of firearms and a judge or circuit court commissioner determines all of the following:

AB464,6,5 1. That the injunction issued under sub. (4) s. 813.12 (4), 813.122 (5), or 813.125 (4), whichever required the surrender of the firearm, has been vacated or has expired and not been extended.

AB464,9 Section 9. 813.12 (4m) (c) of the statutes is renumbered 813.1285 (7) (b) and amended to read:

AB464,6,17 813.1285 (7) (b) If a respondent surrenders a firearm under par. (a) 2. this section that is owned by a person other than the respondent, the person who owns the firearm may apply for its return to the circuit court for the county in which the person to whom the firearm was surrendered is located. The court shall order such notice as it considers adequate to be given to all persons who have or may have an interest in the firearm and shall hold a hearing to hear all claims to its true ownership. If the right to possession is proved to the court's satisfaction, it shall order the firearm returned. If the court returns a firearm under this paragraph, the court shall inform the person to whom the firearm is returned of the requirements and penalties under s. 941.29 (4).

AB464,10 Section 10. 813.122 (2) of the statutes is renumbered 813.122 (2) (a).

AB464,11 Section 11. 813.122 (2) (b) of the statutes is created to read:

AB464,6,22 813.122 (2) (b) When the respondent is served with the petition under this subsection, the person who serves the respondent shall also provide the respondent with all of the following information:

AB464,6,24 1. Notice of the requirements and penalties under s. 941.29 (1) (f) and (2) (e) and notice of any similar applicable federal laws and penalties.

AB464,7,3 2. An explanation of s. 813.1285, including the procedures for surrendering a firearm and the circumstances listed under s. 813.1285 under which a respondent must appear at a hearing to surrender firearms.

AB464,7,5 3. A firearm possession form developed under s. 813.1285 (5), with instructions for completing and returning the form.

AB464,12 Section 12. 813.122 (5m) (a) 1. of the statutes is amended to read:

AB464,7,9 813.122 (5m) (a) 1. Inform the respondent named in the petition of the requirements and penalties under s. 941.29 and any similar applicable federal laws and penalties.

AB464,13 Section 13. 813.122 (5m) (a) 2. of the statutes is amended to read:

AB464,7,22 813.122 (5m) (a) 2. Except as provided in par. (ag), require in writing the respondent to surrender any firearms that he or she owns or has in his or her possession to the sheriff of the county in which the action under this section was commenced, to the sheriff of the county in which the respondent resides or to another person designated by the respondent and approved by the judge or circuit court commissioner. The judge or circuit court commissioner shall approve the person designated by the respondent unless the judge or circuit court commissioner finds that the person is inappropriate and places the reasons for the finding on the record. If a firearm is surrendered to a person designated by the respondent and approved by the judge or circuit court commissioner, the judge or circuit court commissioner shall inform the person to whom the firearm is surrendered of the requirements and penalties under s. 941.29 (4) in accordance with s. 813.1285.

AB464,14 Section 14. 813.122 (5m) (am) of the statutes is repealed.

AB464,15 Section 15. 813.122 (5m) (aw) of the statutes is repealed.

AB464,16 Section 16. 813.122 (5m) (b) and (c) of the statutes are repealed.

AB464,17 Section 17. 813.125 (4) (a) 2. of the statutes is amended to read:

AB464,8,9 813.125 (4) (a) 2. The petitioner serves upon the respondent a copy of a restraining order obtained under sub. (3) and notice of the time for the hearing on the issuance of the injunction under sub. (3) (c). The restraining order or notice of hearing served under this subdivision shall inform the respondent that, if the judge or circuit court commissioner issues an injunction, the judge or circuit court commissioner may also order the respondent not to possess a firearm while the injunction is in effect. The person who serves the respondent with the order or notice shall also provide the respondent with all of the following information:

AB464,18 Section 18. 813.125 (4) (a) 2. a., b. and c. of the statutes are created to read:

AB464,8,12 813.125 (4) (a) 2. a. Notice of the requirements and penalties under s. 941.29 (1) (g) and (2) (d) and notice of any similar applicable federal laws and penalties.

AB464,8,15 b. An explanation of s. 813.1285, including the procedures for surrendering a firearm and the circumstances listed under s. 813.1285 under which a respondent must appear at a hearing to surrender firearms.

AB464,8,17 c. A firearm possession form developed under s. 813.1285 (5), with instructions for completing and returning the form.

AB464,19 Section 19. 813.125 (4m) (c) 1. of the statutes is amended to read:

AB464,8,21 813.125 (4m) (c) 1. Inform the respondent named in the petition of the requirements and penalties under s. 941.29 and any similar applicable federal laws and penalties.

AB464,20 Section 20. 813.125 (4m) (c) 2. of the statutes is amended to read:

AB464,9,9 813.125 (4m) (c) 2. Except as provided in par. (cg), require in writing the respondent to surrender any firearms that he or she owns or has in his or her possession to the sheriff of the county in which the action under this section was commenced, to the sheriff of the county in which the respondent resides or to another person designated by the respondent and approved by the judge or circuit court commissioner. The judge or circuit court commissioner shall approve the person designated by the respondent unless the judge or circuit court commissioner finds that the person is inappropriate and places the reasons for the finding on the record. If a firearm is surrendered to a person designated by the respondent and approved by the judge or circuit court commissioner, the judge or circuit court commissioner shall inform the person to whom the firearm is surrendered of the requirements and penalties under s. 941.29 (4) in accordance with s. 813.1285.

AB464,21 Section 21. 813.125 (4m) (cm) of the statutes is repealed.

AB464,22 Section 22. 813.125 (4m) (cw) of the statutes is repealed.

AB464,23 Section 23. 813.125 (4m) (d) and (e) of the statutes are repealed.

AB464,24 Section 24. 813.125 (6) (c) of the statutes is amended to read:

AB464,9,19 813.125 (6) (c) A respondent who does not appear at a hearing at which the court orders an injunction under sub. (4) but who has been served with a copy of the petition and notice of the time for hearing under sub. (4) (a) 2. that includes the information required under sub. (4) (a) 2. a., b., and c. has constructive knowledge of the existence of the injunction and shall be arrested for violation of the injunction regardless of whether he or she has been served with a copy of the injunction.

AB464,25 Section 25. 813.1285 of the statutes is created to read:

AB464,9,22 813.1285 Notice and process for firearm surrender. (1) Definitions. In this section:

AB464,9,23 (a) "Firearm possession form" means the form developed under sub. (5) (a).

AB464,9,25 (b) "Petitioner" means an individual who is applying for, or for whom a court has granted, an injunction under s. 813.12 (4), 813.122 (5), or 813.125 (4).

AB464,10,2 (c) "Petition for the return of firearms" means a petition developed under sub. (5) (b).

AB464,10,5 (d) "Respondent" means the individual who is the subject of an injunction issued under s. 813.12 (4) or 813.122 (5), or, if the court has required the individual to surrender his or her firearms under s. 813.125 (4m), under s. 813.125 (4).

AB464,10,10 (2) Firearm possession determination. (a) If the respondent is present at the injunction hearing, the respondent shall provide the court a completed firearm possession form. The court shall verify the information on the firearm possession form and shall make an inquiry on the record as to the contents of the firearm possession form.